12/07/2022
WE WON!!
Seventeen hundred and seventy-four days and about a hundred thousand dollars in legal fees later, the government has agreed to give us our whisky back!
As you recall on January 18th, 2018, the largest whisky raid in Canada since prohibition occurred at Fets Whisky Kitchen on Commercial Drive. After a seven-week investigation, arising from a complaint in Victoria against another establishment, the authorities came into Fets Whisky Kitchen without proper authority and warrantless. Their goal was to seize two hundred and forty-two bottles of Scotch Malt Whisky Society whiskies, some of the rarest whiskies on earth. Two Liquor Inspectors from Victoria arrived at opening time in a rented U-Haul truck filled with empty boxes accompanied by a local Inspector and two Vancouver Police Officers. As they put it “we’re seizing this whisky as evidence in an ongoing investigation”.
The officers came in using inspection powers, but as they were in the middle of an investigation, they needed to follow a different section of the Act that requires them to obtain a search warrant and issue a Charter Caution to anyone they were detaining. We received a contravention notice for alleged contraventions that could have led to charges under the Offence Act which held jail terms of up to one year each for my partner and I, coupled with a one hundred thousand dollar fine each. The business was also up for a one hundred thousand dollar fine and the possibility of the cancellation of our liquor licence.
My partner and I took offence to how the government officials handled themselves by running roughshod over the Canadian Charter of Rights and Freedoms and the Liquor Control and licensing Act itself. We decided to hold them accountable and challenge them. We went up against a governmental regime that has considered themselves untouchable since the Government Liquor Act was first formed in 1921, a year after Prohibition and ninety-seven years prior to The Raid.
After the prohibition style raid, we heard rumblings that an investigation had been going on prior. With this knowledge we requested documentation to defend ourselves from the overreaches of these rogue Government Actors. We requested the government to provide us information about the investigation that led to the coordinated raids. The government refused that request. To defend ourselves we filed a Freedom of Information Request to obtain information about the investigation and the raid. Our FOI request was continually delayed. When we finally received our document request, after the submission’s deadline, it was so heavily redacted that we and our legal team were, and still are, dumbfounded. What were they hiding? What are they still hiding?
At least we had something to take to our hearing, or so we thought. Our lawyer, Mr. Dan Coles, sought an adjournment for us to procure more documents and give us time to review what we had before submitting them for a new hearing date. Although Mr. Coles presented evidence from our FOI documents proving that the government did in fact conduct a seven-week investigation leading up to the raids, the Adjudicator determined that the evidence presented was not relevant. Had the government released the FOI documents prior to the submissions deadline they would have at least been entered into evidence.
The Branch Advocate also refused to hear anything pertaining to the FOI documents. At one point slamming her hand on the table shouting, “We won’t be undermined”. We feel our hearing was pre-judged as we weren’t allowed to present our case fairly. In the end Branch ruled against us. Next up; the appeal, known as a reconsideration, where they also ruled against us. Once again, our lawyer presented the new evidence, but it appears it was not taken into consideration and the adjudicator sided with the original ruling.
In December of 2021, we went before the Honorable Justice N. Smith for a Judicial Review. In his ruling he stated that we were denied Procedural Fairness and ordered the Government to produce all documentation pertaining to the investigation and our case. Justice Smith also quashed the two verdicts from the tribunal. Our legal team put forth a formal request for all documents, emails, written correspondence, notes, and copies of the Inspectors notebooks pertaining to our case. The only documents produced by the government was an unredacted version of our FOI documents. In the unredacted version there was mention of other emails and conversations. Nowhere in the documents was a discussion of naming the investigation “Operation Malt Barley” nor do we know who authorized the raid. One email references that the operation was green lit from above. Who “green lit” the raid?
We were heading back to court on October 27th of this year to go back before Justice Smith to force the government to comply with his previous order. The government had other plans. As the original ruling from the tribunal and the appeal were set aside by Justice Smith, the government was compelled to set another tribunal hearing which they set for October 24th, three days before we were to be in front of Justice Smith.
Not sure who didn’t want their involvement in our case known, nor what the government is still trying to hide and or protect. In early October of this year the government decided it was time to do the right thing and return the unlawfully seized whisky. Seized liquor is typically disposed of shortly after seizure, our whisky was never disposed of. They knew they were in the wrong and we had to find the key to get it released. We and our legal team were relentless, and the government finally had enough. An agreement was written up whereby we pay a nominal three thousand dollar fine and the government delivers to us the two hundred and forty-two bottles they unlawfully seized.
We may never know who the government is protecting or why. We may never know who “green lit” the coordinated raid on the four Scotch Malt Whisky Society venues, who made the complaint nor who named the investigation Operation Malt Barley. We will never understand why many of these government actors received promotions after their bungling of this case, showing their disrespect towards The Canadian Charter of Rights and Freedoms, the Provincial Liquor Control and licensing Act, our legal system, and the citizens of the British Columbia.
What we do know, and what matters the most, is that after five years, two enforcement hearings, a Judicial Review and a hundred thousand dollars in legal fees later, a couple of tenacious restaurant owners won their case against an out-of-control provincial liquor regime and two hundred and forty-two bottles of some of the world’s rarest whiskies are being returned to them.
I guess they were undermined after all.
Allura & Eric Fergie
Proprietors
